A Commentary on the Passing Scene by
Robert Paul Wolff
rwolff@afroam.umass.edu

Coming Soon:

The following books by Robert Paul Wolff are available on Amazon.com as e-books: KANT'S THEORY OF MENTAL ACTIVITY, THE AUTONOMY OF REASON, UNDERSTANDING MARX, UNDERSTANDING RAWLS, THE POVERTY OF LIBERALISM, A LIFE IN THE ACADEMY, MONEYBAGS MUST BE SO LUCKY, AN INTRODUCTION TO THE USE OF FORMAL METHODS IN POLITICAL PHILOSOPHY.Now Available: Volumes I, II, III, and IV of the Collected Published and Unpublished Papers.

NOW AVAILABLE ON YOUTUBE: LECTURES ON KANT'S CRITIQUE OF PURE REASON. To view the lectures, go to YouTube and search for "Robert Paul Wolff Kant." There they will be.

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Friday, March 7, 2014

WHY INDEED CONCLUSION

And so we return to the question that provoked Wolff
to a restless quizzing of his fellow conferees: why Kant? What were busy,
successful, worldly lawyers [worldly, at the very least, by philosophical
standards] doing locked in three days of debate about Kant?Some of the participants suggested that that
they were looking for a shtick to beat the
utilitarianism of the left. Others identified the 'law and economics' of the
right as their target. But neither group gave any indication of a serious
interest in the arguments with which Kant had sought to establish his
arcane and rather paradoxical philosophical theses. Arguments, unlike shticks,
not being adaptable to purposes other than those for which they were fashioned, what did anyone at the conference
hope to get from Kant?

The answer is this: lawyers, unlike serious philosophers [but, in this
regard, quite like second—rate philosophers], do not actually seek to demonstrate
the positions they defend. Rather, they aim to assimilate issues with which
they are concerned to the existing structure of laws and precedents in hopes
that courts will construe those issues in ways that favor their clients. For
this purpose, lawyers need a large and versatile armamentarium of concepts,
categories, distinctions, and argument fragments with the aid of which they can
articulate intuitions, convictions, or interests to which they are already
committed. Both utilitarianism and cost/benefit analysis provide just such
weapons to advocates of the left or the right, none of whom can be said ever to
Prove their positions, but all of whom gain argumentative leverage from
their ability to embed their advocacy in a preexisting proof—structure.

Kant's
philosophy is a rich resource of arguments, concepts, and dis­tinctions,
already elaborated into an architectonic of subordinations and coordinations,
incomparably high in intellectual and academic status, and lying entirely
within the public domain. Philosophically speaking, it is to utilitarianism,
cost/benefit analysis, or Rawls' THEORY OF JUSTICE what a strategic nuclear
weapon is to a medium tank. Invocations of the Categorical imperative or the
noumena/phenomena distinction instantaneously confer on theauthor vast quantities of whatteen-age players of Dungeons and Dragons call 'hit
points.' In the jargon of the old gangster movies, Kant is the Equalizer. Sincelawyers are a combative
lot, and good lawyers are winners, three days at Arden House probably seemed like a pretty fair price to
pay for a chanceat a
secret weapon.

Did
the Liberty Fund get its money's worth? One hopes not, considering that organization's
political orientation. Perhaps the readers of this journal can decide for
themselves, having read the best of the papers re­vised and refined in the light of three days of debate. After
the partici­pants had left for their several homes, the following notes were
discovered at the seat that had been occupied by Robert Paul Wolff. Wolff apparently
found the Weinrib paper philosophically suggestive and worthy of serious
consideration. His fragmentary jottings have been Englished, as editors like to
say, and are offered hare for what they might be worth.

Comments by Robert Paul Wolff on Ernest
Weinrib's Paper

A very interesting piece of work. W. is clearly a
Thomist who sees in K.'s notion of an 'Idea of Reason' a modern rationale for
the Aristotelian-Thomist conception of the telos or internal purpose of
a natural kind. Ex­cept that the law, being a human product, can have no other telos
than what its makers impute to it

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.

W. seems hesitant to
come out from behind Kant's skirts and declare himself. It is difficult, merely
from the text, to tell whether he endorses the notion that the unity of the law
is an idea of Reason, or merely attributes it to Kant. But the evident passion
with which W. advances his views decides clearly for the former.

W.
is certainly correct in his diagnosis of Fletcher and Calabresi on torts
[whatever they are], but a diagnosis is not yet a condemnation, let alone a
refutation. Why shouldn't those two merely grant L's point, and agree that,
absent a purposeful God who has set for Mankind the task of articulating an
internally coherent Law, our legal institutions quite properly reflect the
fundamental disunity of our society? [Probably Calabresi would be more
comfortable with that response than Fletcher.]

But leaving aside such considerations, which bear
merely on the truth of L's position, there are serious difficulties with his
appropriation of Kant. The problems center on the Critical doctrine of Ideas of
Reason.

According to Kant, the
intellectual powers of the human mind have both a merely logical and a real
employment. In their merely logical employment, our rational capacities are
used to compare, contrast, order, and systematise such mental contents as they
are presented with, from whatever source. So the arrangement of objects of
perception by genera and species, the classification of sense—contents into the
familiar five senses, the rearrangement of judgments into the form of
syllogisms, and so forth, are all in—stances of the merely logical employment
of intelligence. Nothing is created thereby, and the result is no more than a
sorting out and neatening up of the materials presented to intelligence.

The real employment, on
the other hand, is genuinely creative, resulting in cognitively significant
thoughts, or representations, as Kant calls

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them, that did not exist before, and could not have
been arrived at by any process of the comparison, reorganization, or
abstraction from presented materials of consciousness.

In the CRITIQUE OF PURE
REASON, Kant differentiates between two intellectual powers of the mind, which
he labels Understanding and Reason. The real use of Understanding, he says,
produces the Pure Concepts of Understanding, or, as they are usually referred
to, the categories, among which are Substance and Accident, Cause and Effect,
Possibility, Necessity, and so forth.

Reason, personified by Kant as a
purposive agent, is said always to strive to complete the processes of
organization and arrangement which it undertakes in its merely logical
employment, seeking everywhere for the first cause in the series of causes, for
the necessary being on whose existence
rests the possibility of contingent beings, the first premise from which all syllogistic reasoning descends, and so forth.
Kant calls this the quest for the unconditioned, and he claims that the product
of the real employment of reason is the concept of the unconditioned.
For reasons of piety and historical pendulation [to use Harnack's lovely
neologism], Kant resurrects the Platonic term 'Idea,' and calls the various
articulations of the concept of unconditionality 'Ideas of reason.'

Kant knows, of course — indeed, he insists — that such
Ideas can never find instantiation in experience, for on Kant's own teaching,
all experience is conditioned by the mind—dependent constraints under which
things can be objects for us in space and time. Hence we can never find a first
cause, a free will, a necessary being, or, for the same reasons, a system of
law that achieves full inner coherence.

Nature would not instill in us the unconquerable urge to
seek the Unconditioned unless She had some useful purpose thereby. So we may
conclude that although the search can never be completed, the quest is set us
as a task. The search for an internally coherent tort law, like the search for
a single unified theoretical foundation for the sciences, or a single set of
logical premises from which all true mathematical theorems follow as logical
consequences, or a first cause, a free will, a necessary being, is a search dictated
by the inner telos of reason, setting for us, as an unattainable goal,
an Ideal of Reason. [It is not clear why Wolff reminds himself here of certain
elementary facts about Kant's philosophy with which he would be thoroughly
familiar. I. C.]

But though Kant talks this way
all the time, he offers no argument at all for the repeated invocation of
Nature's purposes with which the introductory and less central portions of his
writings are filled. In fact, of course, Kant himself, through his devastating
refutations of the traditional attempts at proving the existence of God, is,
together with David Hume, the Enlightenment executioner of this way of speaking.
It is entirely incompatible with the deeper teaching of the CRITIQUE to speak
of the inner coherence of tort law as though its achievement were an
objectively necessary task set us by the inner purposes of Reason itself.
Rather, we must recognize that ideal for what it is: one ideal among many that
lawyers or theorists of law may set for themselves, for their own political,
aesthetic, moral, or professional purposes.

So, in the end, W.'s essay is little more than a cri
de coeur, and Fletcher's two—stage process of considerations of right followed
by considerations of humanity is as legitimate as any other. L's use of Kant
here illustrates a more general difficulty with the too—quick appropriation of
portions of a philosophy, as though they were bits and pieces of material

12

that could be separated from the
main body of theory and bent to purposes of one's own. The philosophy of a
great thinker like Kant is an organic unity unfolding from one, or at most a
very few, central insights. One's under­standing of every element in that philosophy,
however secondary or peripher­al, is thoroughly conditioned by one's construal
of those central insights. Before we can 'use' the Kantian notion of an idea of
reason, for example, we must decide how we understand the revolutionary
teaching that concepts are rules for the organization of a diversity of
sense-contents, and hence have not even problematic application beyond the
limits of sense experience

W. cannot escape the necessity of stating, and
defending, his aesthet­ic, moral, political or professional reasons for seeking
internal coherence in the tort law, or in any other set of institutional
practices, for that matter. But this was simply the message of my opening
presentation. I guess it really was the
waste of time it seemed.

About Me

As I observed in one of my books, in politics I am an anarchist, in religion I am an atheist, and in economics I am a Marxist. I am also, rather more importantly, a husband, a father, a grandfather, and a violist.